After stalling for some time, negotiations for an economic partnership agreement (EPA) between the European Union (EU) on the one hand and the Southern African Customs Union (SACU), Mozambique and Angola on the other have recently restarted. According to an article published in Business Day on 10 February 2011, Xavier Carim – Deputy Director-General for international trade at the Department of Trade and Industry – is reported to have indicated that the EPA “should strike a balance between the levels of market access, regional harmonisation of rules, customs co-operation and safety, enforcement of intellectual property laws, competition, investment and procurement.”

In a letter sent to the Minister of Trade and Industry on 7 October 2010, SECTION27 raised concerns “that South Africa may face undue pressure from the EU to agree to certain provisions [in the EPA] that – if adopted and given effect in domestic law – will undermine access to medicines.” In that letter, SECTION27 noted the manner in which the EU has pursued negotiations on a free trade agreement with India, pushing for the latter to agree to higher levels of patent protection than required by the World Trade Organization (WTO)”. Mr Carim’s reported comments suggest that the EU is pursuing a similar agenda in its EPA negotiations with SACU, Mozambique and Angola.

Any commitment to ensure that South Africa’s laws offer higher levels of patent protection than required by the WTO’s Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) will have a direct, negative impact on the constitutional right to have access to medicines of proven quality, safety and efficacy. Put differently, an EPA that commits South Africa to higher levels of patent protection will be in direct conflict with section 27 of the Constitution. SECTION27 has yet to receive any response from the Minister of Trade and Industry. Today we publish our letter to him and make a public call for the EPA to exclude any reference to intellectual property.